Managing the Risks of Personal Injury from the Internet
Timothy O'Brien | May 23, 2014
While it seems almost everyone has chosen to "join the conversation" online, very few appear to be concerned with the potential risks that can arise from their sometimes-spirited online conversations. Although the risk of personal injury is not new, readers should work to make consumers better aware of the risks that can arise from online exchanges, especially clients with younger family members. We should be vigilant in providing often-overlooked coverage solutions that offer at least a degree of protection, while also being sure to remind those we serve that abusing their freedom of speech can have legal and criminal consequences that are uninsurable.
Just 10 years ago, most insurance discussions concerning the personal risks arising from our use of the Internet were focused on the risk of a stolen identity. In 2005, Robin Olson authored an excellent three-part series to help IRMI readers better understand and manage the risk of identity theft. While the Internet has surely accelerated the risk of identity theft, consider for a moment how Internet usage has changed since 2005. Web 2.0 has especially increased our ability to engage many others in dialogue and, in so doing, has greatly amplified our exposure to a host of torts regarded as uncommon just a decade ago. The risk of causing "injury" to others has expanded significantly due to the remarkable increase in often ill-advised comments and images posted on many social media sites. Now consider how much more accessible these social websites are through mobile devices that were not part of our everyday lives 10 years ago.
Just How Much Online Dialogue?
To provide some perspective on the ever-expanding growth of social networking that facilitates most online conversations, the website www.statisticbrain.com offers the following:
| Percent of People Who Use Social Networks | Percent Yes |
|---|---|
| Do you ever use/have a profile on ... (poll taken in early 2012) | |
| Any social network | 58% |
| 56% | |
| 14% | |
| 11% | |
| Google+ | 9% |
| Social Network Statistics | Data |
| Total number of Facebook users worldwide | 1.4 billion |
| Total percentage of 18–24 year olds who already use social media | 98% |
| Total percentage of people on earth who use Facebook | 11% |
| Average amount of time a person uses Facebook per month | 15 hours, 33 minutes |
| Total amount of people who access Facebook with phone | 250 million |
| Percent of Facebook users under the age of 10 | 25% |
| Percent of teens who view social networks as unsafe | 59% |
| Percent of Americans who aren't confident in their ability to use privacy settings | 24% |
| Twitter Statistics | Data |
| Total number of active registered Twitter users | 645,750,000 |
| Number of new Twitter users signing up every day | 135,000 |
| Number of unique Twitter site visitors every month | 190 million |
| Average number of tweets per day | 58 million |
| Percent of Twitter users who use their phone to tweet | 43% |
| Percent of tweets that come from third-party applicants | 60% |
| Percent of Twitter users who don't tweet but watch other people tweet | 40% |
| Cyberbullying Statistics | Data |
| Percent of students who reported being cyberbullied | 52% |
| Teens who have experienced cyberthreats online | 33% |
| Teens who have been bullied repeatedly through their cell phones or the Internet | 25% |
| Teens who do not tell their parents when cyberbullying occurs | 52% |
| Percent of teens who have had embarrassing or damaging pictures taken of themselves without their permission, often using cell phone cameras | 11% |
What Types of Risks?
Of course, not only do social media sites provide "a voice" to all, many with a voice are also able to showcase their artistic side by posting images online—all sorts of images, including videos. It seems many who join the conversation have the false impression that our country's First Amendment rights protect us from all manner of speech. Consider these examples.
- Reymundo and Shellie Esquivel allege their 16-year-old daughter's high school classmates created a disturbing Instagram page, including pictures of topless underage females and bottomless underage males. The high school students were sued for libel and their parents for negligence.
- A 14-year-old eighth-grader in Texas and his parents are being sued after he allegedly wrote a lengthy book of fiction, depicting a female classmate as the main character who was "date raped."
- A principal in South Richmond, Virginia, sued four parents for writing what she called a "scathing" letter about her that was published in a newspaper. The suit alleged the four conspired to "purposefully and without lawful justification maliciously injure the plaintiff in her profession and reputation."
- Michael Lee, a high school baseball coach, sued a parent for, among other things, libel and slander. The slander cause of action was based on the allegation that the parent stated to at least eight people that Lee was a bad coach, was unethical, and had severe anger and emotional problems. In both causes of action, Lee alleged the parents acted with malice and caused him to lose his job.
- After a long conflict over his position, a public school employee in Deptford (New Jersey) Township filed a lawsuit against a township parent and the administrators of a Facebook page over disparaging content on that page.
How Significant a Risk?
It is difficult to find firm statistics showing an increase in libel and slander lawsuits, let alone jury awards or negotiated settlements. The harsh level of discourse on many social media sites should help consumers understand the critical importance of securing insurance coverage for allegations that they or a family member has committed a personal injury in an online exchange, if for no other reason than to transfer the defense costs to an insurer. Case law varies widely among jurisdictions in determining whether offensive remarks meet the standards of defamation and libel and whether it was the intent of such remarks to cause harm to another. Evolving case law suggests that the commonly sensational context of postings on sites like Twitter serves to create a de facto "buyer beware exception" to libel law.
William Charron, a litigation partner at Pryor Cashman LLP in New York City, has published this fascinating article exploring this topic in Berkeley Journal of Entertainment and Sports Law. While all insurance practitioners know not to provide advice that can be construed as a legal opinion, it is also important not to exaggerate the actual risk of being successfully sued for posting or tweeting a comment that causes another to take legal action.
Coverage Solutions—Possibly
With so much uncertainty concerning what online activity can result in an exposure to a lawsuit from a third party alleging he or she has been injured in some way, what coverage solutions exist to help consumers manage their family's exposure to the risks of "joining the conversation" online?
As readers know, while unendorsed Insurance Services Office, Inc. (ISO), and American Association of Insurance Services (AAIS) homeowners (HO) insurance forms do not provide coverage for "personal injury," endorsements are available to add protection from a wide range of verbal torts. The ISO HO 24 82 04 02 personal injury endorsement, or the AAIS equivalent, HO 4001 01 06, are both available for such a nominal cost that all insurance practitioners would be wise to automatically include these endorsements for all clients. This assertion prompts an editorial observation and question. It is very rare that I see homeowners insurance policies with this endorsement attached, begging this question: if the reason it is not being added is not simple agent oversight, what is the reason to intentionally not provide this coverage, given the nominal cost to add it?
Meanwhile, as with any coverage, simply adding coverage for personal injury does not afford protection for all of the personal injury offenses listed as covered. For example, variations of the following exclusions used on the ISO endorsement exist on AAIS and other policies that make it clear coverage does not apply to personal injury.
- Caused by or at the direction of an insured with the knowledge that the act would violate the rights of another and would inflict "personal injury"
- Arising out of the oral or written publication of material, if done by or at the direction of an insured with knowledge of its falsity
- Arising out of a criminal act committed by or at the direction of an insured
It is easy to foresee many instances in which these and other exclusions can prevent policyholders from receiving the benefit of coverage. As many readers are aware, the select group of insurers focused on the "high-net-worth" marketplace automatically includes personal injury protection under Section II coverage, though such forms also provide significant exclusions that greatly restrict coverage.
Adding personal umbrella coverage will also provide for certain personal injury claims to be covered, though generally the same exclusions apply. ISO personal umbrella form DL 98 01 10 060, for example, does provide personal injury coverage—subject to exclusions—and will drop down to first dollar if the underlying homeowners form has not been endorsed to add such coverage. With such a wide variance of personal umbrella and personal excess liability policy forms, however, it is challenging but essential to determine if and how the specific second-layer liability policy provides supplemental coverage for personal injury claims.
Suggested Best Practices
Insurance practitioners who serve their clients by offering more than just a "competitive quote" can insert the risk of personal injury as part of a more substantive and helpful conversation about how insurance can—and cannot—help consumers to manage their risks. While adding insurance coverage is helpful, our efforts should also focus on recommending to those we serve that the best protection strategy is to avoid or minimize this risk. In addition to the few suggestions below, what ideas can you or others you work with think of to help protect against this risk?
- For a few dollars, insurance practitioners should ensure that personal injury coverage is included for all clients as a matter of common practice.
- Make clients aware they have limited coverage for this risk as part of their homeowners policy form; explaining that protection from such claims can be increased by adding a personal umbrella/excess liability to their portfolio may motivate some to add second-layer liability coverage.
- Become familiar with the exclusions that greatly limit personal injury protection, and explain to clients that the intent of this coverage is the same as with other forms of insurance—to protect against accidental losses that cannot be foreseen but not actions that are intentional or criminal.
- Consider asking parents if they have reviewed suggestions of how to formally guide their children's online activities. There is a lot of Web-based content providing practical guidance we can offer to help parents adopt some family best practices, including the following.
- https://blogging.im/cyberbullying
- www.commonsensemedia.org/blog/social-networking-tips
- https://www.youtube.com/watch?v=EkU01bIxq90 - Social Media - How to Teach Responsibility to Kids | PERFECTLY
- www.debate.org/opinions/should-parents-teach-their-kids-how-to-use-social-media-properly
Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.
